BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130008732 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests promotion to lieutenant colonel (O-5), with a date of rank (DOR) of no later than 13 January 2007.

2.  The applicant states:

* He was selected by a Department of the Army (DA) board on 12 January 2006
* He was assigned to the position of G-4/5/7 executive officer which was graded as an O-5
* Because of the orders and assignment history, he should have been promoted; however, failure to do so was an administrative error

3.  The applicant provides:

* A letter to the Army Review Boards Agency, dated 29 April 2013
* Army National Guard (ARNG) Personnel Center Promotion Memorandum, dated 12 January 2006
* National Guard Bureau (NGB) Orders 187-3, dated 6 July 2006 (Corrected Copy)
* NGB Orders 187-3, dated 6 July 2006





CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the ARNG, the applicant accepted an appointment as a Reserve commissioned officer in the rank of second lieutenant (O-1) on 12 December 1989.  He accepted an appointment in the Alabama Army National Guard (ALARNG) on 13 December 1989 in pay grade O-1 and he was promoted through the ranks to major (O-4) on 21 October 1999.

2.  On 12 January 2006, the applicant was notified that he had been selected for promotion to O-5 under the provisions of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) by a selection board that adjourned on 30 September 2005.  He was told that his promotion eligibility date was 13 January 2007, the date Federal Recognition was extended in the higher grade, or the date following the date Federal Recognition was terminated in his current Reserve grade.

3.  On 6 July 2006, NGB Orders 187-3 were published attaching him to the Office of the Deputy Chief of Staff, G-4 (HQDA G-4), Force Management Cell, Army Pentagon, effective 18 July 2006, to serve as a Staff Officer.

4.  The applicant is currently in the Active Guard Reserve (AGR).  He is attached to the NGB serving as a logistics plans officer.

5.  During the processing of this case an advisory opinion was obtained from the NGB, Chief, Personnel Policy Division who recommends denial of the applicant's request.  The advisory opinion states:

	a.  A DA Promotion Selection Board selected the applicant for promotion to O-5 with a promotion eligibility date of 13 January 2007, while serving in an AGR status.

	b.  The applicant began serving in an O-5 slot beginning 28 July 2008, per his AGR Orders Number 39-4, dated 8 February 2008.

	c.  Army Regulation 135-155, paragraph 4-2d states "AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in a higher grade.  The DOR will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in a higher grade, whichever is earlier."

	d.  In order for a promotion to occur, under the circumstances described above, it must be in compliance with the strength limitations of controlled grades established by Title 10, U.S. Code (U.S.C.).
	e.  The applicant's promotion was involuntarily delayed in accordance with Title 10, U.S.C., section 14311, which states "The promotion of a Reserve officer on the Reserve Active Status List who is serving on active duty, or who is on full time National Guard duty for administration of the Reserves or the National Guard, to a grade to which the strength limitations of section 12011 of this title apply shall be delayed if necessary to ensure compliance with those strength limitations.  The delay shall expire when the Secretary determines that the delay is no longer required to ensure such compliance."

	f.  AGR promotions are subject to limitations of controlled grades per Title 10, U.S.C., section 12011 as mentioned above.  Paragraph a(1) of Title 10, U.S.C., section 12011 states "Of the total number of members of a Reserve Component who are serving on full time Reserve Component duty at the end of any fiscal year, the number of those members who may be serving in each of the grades of major, lieutenant colonel, and colonel may not, as of the end of the Fiscal year, exceed the number determined (by the table in the section of law)."

	g.  Although the limitations of Title 10, U.S.C., section 12011 exist, officers must be considered for promotion in accordance with Title 10, U.S.C., section 14304.  This is why the applicant was considered and selected for promotion by the mandatory promotion board, but he cannot be promoted due to the limitations of the controlled grades of Title 10, U.S.C., section 12011.

	h.  Upon release from a Title 10 AGR status, the involuntary promotion delay no longer applies and the applicant can be promoted to O-5 immediately.

6.  The applicant was provided a copy of the advisory obtained from the NGB, Chief, Personnel Policy Division, for his information and possible rebuttal.  He submitted a rebuttal stating:

	a.  The advisory opinion is incomplete and misleading.

	b.  The ABCMR should neither adopt nor rely on the opinion.

	c.  He was selected for promotion to O-5 by a DA Board on/about 12 January 2006 and ordered to serve as logistics planning officer on 18 July 2006.

	d.  The position is graded for an O-5 in the NGB Table of Distribution and Allowances (TDA).

	e.  He has noted that NGB has promoted other officers to O-5 since 12 January 2006, while under the strength limitations noted by the NGB advisory opinion.  This raises the question as to how other officers could be promoted under conditions that NGB asserts prohibited his timely promotion.

	f.  Whatever basis existed for NGB to promote others should have equally allowed NGB to have promoted him.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  According to Title 10, U.S.C., section 14311, the promotion of a Reserve officer on the Reserve Active Status List who is serving on active duty, or who is on full time National Guard duty for administration of the Reserves or the National Guard, to a grade to which the strength limitations of section 12011 of this title apply, shall be delayed if necessary to ensure compliance with those strength limitations.  The delay shall expire when the Secretary determines that the delay is no longer required to ensure such compliance.

3.  The applicant's rebuttal to the advisory opinion has also been considered.  He argues that other officers, who were subject to the same strength limitations, have been promoted.  He does not understand why the same basis, whatever it was, could not have been used to promote him.  Unfortunately, the applicant has not provided any documentary evidence in support of his allegation that the NGB is picking and choosing whom to promote and whom not to promote.

4.  The applicant willingly volunteered for AGR status and has voluntarily continued in such service.  The controlled grade limitations are a central feature of ARNG force management imposed by law.  To the extent that such control grade limitation imposes promotion delays upon AGR officers that their traditionally drilling colleagues are not subjected is simply an opportunity cost that AGR officers bear in exchange for the many benefits that accrue to them as full-time military members.  The applicant has always had the option of leaving the AGR and becoming a drilling member of the ARNG in order to secure his promotion.

5.  The applicant has not shown error or injustice in the actions taken by the ARNG.  In view of the foregoing, his request should be denied.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130008732



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ABCMR Record of Proceedings (cont)                                         AR20130008732



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